#29205, #29206-r-SRJ

2020 S.D. 61

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellant,

v.

CARRIE LYNN OSTBY, Defendant and Appellee.

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STATE OF SOUTH DAKOTA, Plaintiff and Appellant,

v.

DANA OLMSTED, Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FOURTH JUDICIAL CIRCUIT

LAWRENCE COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE ERIC STRAWN

Judge

* * * *

JASON R. RAVNSBORG

Attorney General

ERIN E. HANDKE

Assistant Attorney General

Pierre, South Dakota

BRENDA K. HARVEY of

Lawrence County State’s

 Attorney’s Office Attorneys for plaintiff and 

appellant.

ARGUED

OCTOBER 7, 2020

OPINION FILED 11/04/20
ELLERY GREY of

Grey & Eisenbraun Law

Rapid City, South Dakota Attorneys for defendant and 

appellee Carrie Ostby.

ROBERT D. PASQUALUCCI of

Pasqualucci Law

Rapid City, South Dakota Attorney for defendant and

appellee Dana Olmsted.
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JENSEN, Justice

[¶1.] Carrie Lynn Ostby and Dana Olmsted were separately indicted on 

felony-controlled substance charges. Ostby and Olmsted filed motions to suppress 

evidence seized by law enforcement, pursuant to a search warrant, at the 

apartment where Ostby and Olmsted resided. The motions alleged that the 

affidavit supporting the search warrant did not show probable cause for the search. 

Ostby and Olmsted also argued that exigent circumstances did not exist to search 

the apartment. The circuit court sustained both motions to suppress. We granted 

the State’s petitions for intermediate appeal of both rulings. The cases are 

consolidated for the purpose of considering the appeals. We reverse the suppression 

orders.

Facts and Procedural History

[¶2.] On March 20, 2019, at around 5:45 p.m., Deadwood police officers 

responded to a report of possible illegal drug activity associated with Apartment 15 

located at 53 Dunlap Avenue, in Deadwood, South Dakota. After a failed attempt to 

speak with the occupant, officers gained entry into Apartment 15 and detained a 

male subject inside the apartment. Subsequently, Officer Erik Jandt submitted a 

search warrant request to a magistrate judge. Officer Jandt signed the affidavit in 

support of the warrant, presenting the following facts.

[¶3.] On March 20, 2019, April Roberts contacted the Deadwood Police to 

report that she had found a baggie that she suspected contained methamphetamine 

in a dryer of the apartment building at 53 Dunlap Avenue in Deadwood, South 

Dakota. After the officers arrived, Roberts told them that she was doing laundry 
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and needed to use the clothes dryer located in a common area of the apartment 

building, but there were clothes left inside the dryer. Roberts reported that she 

knocked on the door of Apartment 15 and asked the male occupant to remove the 

clothes from the dryer. After he removed the clothes, Roberts looked inside the 

dryer and found a baggie with a substance she believed was methamphetamine. 

The substance tested positive for methamphetamine in a field test conducted by 

Officer Jandt. Roberts also told the officers that a month earlier, she had found a 

small baggie that she believed contained methamphetamine in the hallway of the 

apartment building where the dryer was located, and that she reported it to law 

enforcement. Roberts had also reported that there was “heavy short-term traffic” in 

and out of Apartment 15.

[¶4.] After speaking with Roberts, the officers knocked on the door of 

Apartment 15. A male voice inside yelled, “Who is it?” Officer Jandt responded 

that it was the police. No response was heard from inside the apartment, but the 

officers could hear someone walking around inside. The officers then obtained a key 

from the property manager to gain access to Apartment 15. The officers detained 

the male individual, identified as Dana Olmsted, transported him to the Lawrence 

County jail, and arrested him for possession of a controlled substance and 

possession of drug paraphernalia.

[¶5.] Officer Jandt was also aware of information from Drug Investigator 

James Olson, who was actively working a drug investigation involving Apartment 

15. Olson knew that the apartment was rented by Ostby and was aware of the 

report, made by Roberts, of heavy foot traffic in and out of Apartment 15. As part of 
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Olson’s investigation, he observed a male subject arrive at “Ostby’s residence and go 

inside with the vehicle running and the driver’s door open.” The male subject was 

in the residence “approximately 2 minutes.” The subject was later stopped for a 

traffic violation and arrested for possession of methamphetamine. Olson also 

received unconfirmed information that Ostby had been distributing 

methamphetamine.

[¶6.] The affidavit requested to search Apartment 15 and Ostby’s vehicle for 

illegal drugs. The affidavit also requested permission to take urine samples from 

both Ostby and Olmsted. The reviewing magistrate judge found probable cause for 

the search warrant and granted the request.

[¶7.] The subsequent search of the apartment produced several bags 

containing a white crystal substance, which was later confirmed to be 

methamphetamine. The urine samples taken from Ostby and Olmsted both tested 

positive for methamphetamine. The search of Ostby’s vehicle did not result in the 

discovery of any contraband.

[¶8.] On March 27, 2019, Olmsted was indicted and charged with one count 

of possession of a controlled drug or substance. On April 24, 2019, Ostby was 

indicted on one count of unauthorized ingestion of a controlled substance. She was 

subsequently charged, by superseding indictment, with unauthorized ingestion of a 

controlled substance, possession of a controlled drug or substance, and possession of 

a controlled drug or substance with the intent to distribute.

[¶9.] On July 9, 2019, Olmsted filed a motion to suppress evidence. He 

argued that probable cause did not exist to issue a search warrant for the 
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apartment, and that there were no exigent circumstances for the search in the 

absence of a valid warrant. Olmsted requested that “all evidence seized as a result 

of his stop, detention, and search of his residence be suppressed.”1 On July 24, 

2019, Ostby joined the motion to suppress filed by Olmsted.

[¶10.] The State responded that probable cause existed for the issuance of a 

search warrant, and that exigent circumstances existed to search the apartment 

without a warrant. Alternatively, the State argued that suppression was not a 

proper remedy if probable cause did not exist for the search warrant because Officer 

Jandt had a good-faith belief that the warrant was valid.

[¶11.] On September 10, 2019, Officer Jandt testified at an evidentiary 

hearing held on both motions to suppress. The circuit court filed memorandum 

decisions granting the motions on November 25, 2019. The circuit court determined 

probable cause did not exist for the search warrant, and that the exigent 

circumstances exception to the warrant requirement was inapplicable. The circuit 

court did not address the good-faith exception raised by the State.

[¶12.] The circuit court entered separate orders granting the motions to 

suppress. The State timely filed petitions for permission to appeal both 

intermediate orders on December 21, 2019. This Court granted both petitions on 

January 30, 2020. The State raises the following issues as to both suppression 

orders:

 

1. The parties did not argue, and the circuit court did not address, whether 

probable cause existed for the search of Ostby’s vehicle or to take urine 

samples from Ostby and Olmsted. We do not express any opinion whether 

probable cause existed for the search of the vehicle or the urine samples.
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I. Whether the affidavit in support of the search warrant 

established probable cause to search Apartment 15.

II. Whether the good-faith exception applies to the 

exclusionary rule, if the search warrant is determined to 

be invalid.

Analysis and Decision

I. Whether the affidavit in support of the search 

warrant established probable cause to search 

Apartment 15.

[¶13.] “We review the issuing court’s probable cause determination 

independently of any conclusion reached by the judge in the suppression hearing.” 

State v. Gilmore, 2009 S.D. 11, ¶ 7, 762 N.W.2d 637, 641. Our review of the 

probable cause determination of the issuing magistrate judge is deferential. 

“Reviewing courts are not empowered to conduct an after-the-fact de novo probable 

cause determination; on the contrary, the issuing judge’s legal basis for granting the 

warrant is examined with ‘great deference.’” State v. Raveydts, 2004 S.D. 134, ¶ 8, 

691 N.W.2d 290, 293 (quoting State v. Jackson, 2000 S.D. 113, ¶ 9, 616 N.W.2d 412, 

416). “A deferential standard of review is appropriate to further the Fourth 

Amendment’s strong preference for searches conducted pursuant to a warrant.” Id.

(quoting Jackson, ¶ 9, 616 N.W.2d at 416). “On review, we are limited to an 

examination of the facts as contained within the four corners of the affidavit.” 

Gilmore, 2009 S.D. 11, ¶ 7, 762 N.W.2d at 641.

[¶14.] In determining whether probable cause exists to support the issuance 

of a search warrant, “[t]here must be ‘a showing of probability of criminal activity.’” 

State v. Tenold, 2019 S.D. 66, ¶ 30, 937 N.W.2d 6, 14 (quoting State v. Helland, 

2005 S.D. 121, ¶ 16, 707 N.W.2d 262, 269). “[T]he judge must be able ‘to make a 
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practical, common-sense decision whether, given all the circumstances set forth in 

the affidavit before [the judge], including the “veracity” and “basis of knowledge” of 

persons supplying hearsay information, there is a fair probability that contraband 

or evidence of a crime will be found in a particular place.’” Id. (quoting Illinois v. 

Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983)). This 

Court, in Gilmore, explained that “these elements should [not] be understood as 

entirely separate and independent requirements to be rigidly exacted in every case” 

but “as closely intertwined issues that may” aid in the finding of probable cause. 

2009 S.D. 11, ¶ 11, 762 N.W.2d at 642 (quoting Gates, 462 U.S. at 230, 103 S. Ct. at 

2328).

[¶15.] “Probable cause cannot be determined by some ‘formulaic solution.’” 

State v. Dubois, 2008 S.D. 15, ¶ 11, 746 N.W.2d 197, 202 (quoting Helland, 2005 

S.D. 121, ¶ 15, 707 N.W.2d at 268). It “‘is a fluid concept—turning on the 

assessment of probabilities in particular contexts—not readily, or even usefully, 

reduced to a neat set of legal rules.’” State v. Running Shield, 2015 S.D. 78, ¶ 9, 871 

N.W.2d 503, 506 (quoting Jackson, 2000 S.D. 113, ¶ 22, 616 N.W.2d at 420). We 

look “at the totality of the circumstances to decide if there was at least a 

‘substantial basis’ for the issuing judge’s finding of probable cause.” Tenold, 2019 

S.D. 66, ¶ 28, 937 N.W.2d at 14 (quoting State v. Boll, 2002 S.D. 114, ¶ 44, 651 

N.W.2d 710, 721 (Konenkamp, J., concurring specially)). The “totality of the 

circumstances” test requires us to look at the evidence contained in the affidavit in 

its entirety—the “whole picture”—rather than at each piece of the evidence in 
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isolation. State v. Barry, 2018 S.D. 29, ¶ 22, 910 N.W.2d 204, 212 (quoting District 

of Columbia v. Wesby, __ U.S. __, __, 138 S. Ct. 577, 588, 199 L. Ed. 2d 453 (2018)).

[¶16.] Officer Jandt’s affidavit relied heavily on information he received from 

Roberts. This Court has “recognized two inquiries crucial to a probable cause 

determination in cases when an informant’s tip is involved.” Tenold, 2019 S.D. 66, 

¶ 34, 937 N.W.2d at 16. “First, an ‘explicit and detailed description of alleged 

wrongdoing, along with a statement that the event was observed firsthand, entitles 

[the informant’s] tip to greater weight than might otherwise be the case.’” Id 

(quoting Raveydts, 2004 S.D. 134, ¶ 11, 691 N.W.2d at 295). “Second, the extent to 

which the tip is corroborated by the officer’s own investigation is important.” Id.

(quoting Raveydts, 2004 S.D. 134, ¶ 12, 691 N.W.2d at 295). “However, not every 

piece of information provided by an informant requires corroboration. ‘Because an 

informant is right about some things, he is more probably right about other facts[.]’” 

Gilmore, 2009 S.D. 11, ¶ 16, 762 N.W.2d at 643 (quoting Gates, 462 U.S. at 281, 103 

S. Ct. at 2355).

[¶17.] Furthermore, we consider a known informant, who observed the 

activity firsthand to be more reliable. An informant “whose identity is known, who 

personally observes the alleged criminal activity, and who openly risks liability by 

accusing another person of criminal activity [ ]may not need further law 

enforcement corroboration.” Dubois, 2008 S.D. 15, ¶ 15, 746 N.W.2d at 203 (quoting 

State v. Griggs, 34 P.3d 101, 104 (Mont. 2001)).

[¶18.] The circuit court concluded that Roberts’s tip could not establish 

probable cause for the search warrant because law enforcement failed to “confirm 
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the tips through personal observations of criminal activity, or in the alternative, be 

aware that the tipster has special training or experience relating to the conclusion 

at issue.” In reaching this conclusion, the circuit court erroneously relied on 

language from State v. Sharpfish, wherein this Court, in discussing reasonable 

suspicion, stated that when an unknown informant does not give “explicit and 

detailed description of alleged wrongdoing,” . . . “[t]he officer must confirm the tip 

through personal observations of criminal activity, or in the alternative, be aware 

that the tipster ‘has special training or experience relating to the conclusion at 

issue.’” 2019 S.D. 49, ¶ 27, 933 N.W.2d 1, 10 (citation omitted).

[¶19.] However, Sharpfish is inapplicable to the circumstances here because 

Roberts was a known informant. She identified herself to law enforcement and met 

with them at the apartment building. See United States v. Robertson, 39 F.3d 891, 

893 (8th Cir. 1994) (holding that the credibility of an anonymous informant was 

verified based on a face-to-face meeting with the officer and the officer’s training 

and experience in interviewing “hundreds of defendants and informants”). Roberts

also provided law enforcement with an “explicit and detailed description of the 

wrongdoing” when she reported her firsthand observations and her finding of the 

baggie immediately after Olmsted removed his laundry from the dryer.

[¶20.] Additionally, much of the information provided by Roberts was 

corroborated by law enforcement. Law enforcement personally observed the baggie 

and preliminarily confirmed that it contained methamphetamine. Law 

enforcement’s ability to verify this information suggests that Roberts may have also 

properly identified that the baggie she found in the hallway of the apartment 
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building, a month earlier, contained methamphetamine. Roberts’s report that a 

male in Apartment 15 had removed the laundry in the dryer was also partially 

corroborated when the officers knocked on the door of the apartment, and a male 

inside asked who was there. The information that Roberts had observed “heavy 

short-term traffic” coming from Apartment 15 was also partially corroborated by

Investigator Olson, who personally observed an individual arrive at the apartment 

building, leave his car running and door open, and return to the vehicle two minutes 

later. This individual was later stopped for a traffic violation and arrested for 

possession of methamphetamine. Under these circumstances, the reviewing 

magistrate judge could appropriately find the “veracity” and “basis of knowledge” 

for Roberts’s information to be reliable.

[¶21.] Ostby and Olmsted, however, argue that even if the magistrate judge 

could rely on the information provided by Roberts, the circuit court’s suppression 

rulings should be affirmed because there was an insufficient nexus between this 

information and the request to search Apartment 15. Guthrie v. Weber, 2009 S.D. 

42, ¶ 11, 767 N.W.2d 539, 543 (stating that “[t]he Fourth Amendment requires that 

there be a nexus between an item to be seized and the alleged criminal activity”). 

They highlight that both bags of methamphetamine Roberts purportedly found were 

located in common areas of the apartment building, and the prior arrest of a person 

found to possess methamphetamine after entering the apartment building was not 

“directly linked . . . or traceable” to Apartment 15.

[¶22.] Ostby’s and Olmsted’s arguments presuppose both a heightened 

standard for probable cause and a piecemeal approach to reviewing the facts in the 
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affidavit. But Roberts’s discovery of the baggie of methamphetamine in the dryer 

provided a direct connection between the criminal activity—the baggie of 

methamphetamine found in the dryer—and the male occupant in Apartment 15. 

Additionally, the reviewing magistrate could have also considered the other 

information provided by Roberts and the investigation of Investigator Olson to find 

a probability of ongoing drug activity connected with Apartment 15. Finally, the 

magistrate judge could have also drawn inferences from the male occupant’s failure 

to open the door after law enforcement knocked on the door of Apartment 15 and 

identified themselves, as contrasted with his willingness to respond to and 

communicate with Roberts when she knocked on the door a short time before.2 

“[W]e will draw every reasonable inference possible in support of the issuing court’s 

determination of probable cause to support the warrant.” Dubois, 2008 S.D. 15, ¶ 

11, 746 N.W.2d at 203 (citation omitted). The affidavit, and the reasonable 

inferences drawn therefrom, provided the reviewing magistrate with a sufficient 

basis to conclude that the information was reliable, and that there was a “fair 

probability” that contraband would be found in Apartment 15.

 

2. Ostby and Olmsted claim that Officer Jandt’s body camera footage, presented 

at the suppression hearing, showed that Roberts was confused about the 

apartment where Olmsted was located, but this claim is not supported by the 

footage itself. More importantly, none of these additional facts are relevant 

to our determination, as they were not presented to the magistrate at the 

time he granted the search warrant. “[T]he existence of probable cause for 

the search warrant must rise or fall on the affidavit itself which was the only 

evidence presented to the magistrate for his determination of probable

cause.” Jackson, 2000 S.D. 113, ¶ 11, 616 N.W.2d at 416 (quoting State v. 

Smith, 281 N.W.2d 430, 433 (S.D. 1979)).
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[¶23.] Ostby and Olmsted also ask us to review the circuit court’s conclusion 

that exigent circumstances did not exist for law enforcement to search Apartment 

15; however, the State has not challenged this determination, and the question of 

exigent circumstances is not before us.3 Finally, having determined that probable 

cause existed for the issuance of the search warrant, it is unnecessary to consider 

whether the good-faith exception applies to the exclusionary rule.

[¶24.] We reverse the circuit court’s suppression orders and remand for 

further proceedings.

[¶25.] GILBERTSON, Chief Justice, and KERN, SALTER, and DEVANEY, 

Justices, concur.

 

3. The underlying premise of this argument from Ostby and Olmsted is that law 

enforcement’s initial entry into Apartment 15 was illegal. However, the 

question of probable cause for the search warrant does not turn on legality of 

law enforcement’s initial entry into Apartment 15. Even “when a search 

warrant is based partially on tainted evidence and partially on evidence 

arising from independent sources, ‘[if] the lawfully obtained information 

amounts to probable cause and would have justified issuance of the warrant 

apart from the tainted information, the evidence seized pursuant to the 

warrant is admitted.’” Tenold, 2019 S.D. 66, ¶ 27, 937 N.W.2d at 14 (citation 

omitted). The only information included in the affidavit, derived from the 

initial entry into Apartment 15, was Olmsted’s identity and that a knife 

inside the apartment was holding the door shut. We have not relied on either 

fact in our review of the probable cause determination.